12. AMERICANS WITH DISABILITIES ACT

Introductory Comment

This chapter provides jury instructions for actions brought under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq. The ADA was first enacted in 1990 and became effective July 26, 1992. The legislative purposes of, and findings for, the ADA are set forth in § 12101 and are very broad. Essentially, the ADA provides a national mandate for the elimination of discrimination against individuals with disabilities in critical areas such as employment, housing, public accommodation, education, and access to public services. § 12101(a)(3) and (b).

As the Supreme Court has observed, "[t]o effectuate its sweeping purpose, the ADA forbids discrimination against disabled individuals in major areas of public life, among them employment (Title I of the Act) [42 U.S.C. §§ 12111–12117], public services (Title II) [§§ 12131–12165], and public accommodations (Title III) [§§ 12181–12189]." PGA Tour, Inc. v. Martin, 432 U.S. 661, 675 (2001). Title I protects only employees of employers with 15 or more employees. 42 U.S.C. § 12111(5)(A).

Because a substantial majority of the reported Supreme Court and Ninth Circuit decisions arise under the employment provisions of the ADA, these instructions are intended to cover employment claims under the ADA.

Many of the reported cases involving claims of employment discrimination brought under the ADA focus on key issues such as whether an individual has a disability within the meaning of the ADA; whether the individual is "otherwise qualified for the position"; whether the individual can perform the "essential functions" of the job with or without "reasonable accommodation"; and whether "reasonable accommodation" has been provided. The instructions address many of these issues.

The elements of an employment claim under the ADA are identical regardless of whether the defendant is a private employer (Title I) or a public entity (Title II). Those elements are that the claimant has a disability (as defined in 42 U.S.C. § 12102(2)), that the claimant is qualified to perform the essential functions of the job, and that the claimant has suffered adverse employment action because of the disability. Hutton v. Elf Etochem No. Am., Inc., 273 F.3d 884, 895 (9th Cir.2001).

The element of causation has been thoroughly addressed in Head v. Glacier Northwest, Inc., 413 F.3d 1053, 1063–66 (9th Cir.2005). In essence, Head clarified several questions. First, Head observed that the ADA’s "because of" language does not require a showing that a disability (or a reasonable request for accommodation) was the sole cause for an adverse employment action. Second, Head heavily relied on the Title VII case of Costa v. Desert Palace, Inc., 299 F.3d 838, 856–57 (9th Cir.2002), aff’d, 539 U.S. 90 (2003) in setting forth an analytical approach on how to instruct a jury on the subject of causation:

The Costa court laid out two alternatives for the trial judge. This approach reflects the fact that although the statute uses "because of" language, the ADA plaintiff need not show more than that impermissible motives were a "motivating factor" in any adverse action. The approach also reflects the fact that the evidence in a particular case may not suggest more than one possible reason for the challenged action.

Under the first alternative in Costa, if the judge determines that the only reasonable conclusion the jury could reach is that discriminatory animus is the sole reason for the challenged action or that discrimination played no role in the decision, the jury should be instructed to determine whether the challenged action was taken "because of" the prohibited reason.

The second alternative applies in a case in which the evidence could support a finding that discrimination is one of two or more reasons for the challenged decision, at least one of which may be legitimate. In that case the jury should be instructed to determine whether the discriminatory reason was a "motivating factor" in the challenged action.

Third, Head held "that the ADA outlaws adverse employment decisions motivated, even in part, by animus based on a plaintiff’s disability or request for an accommodation–a motivating factor standard." Head, 413 F.3d at 1065.

As noted, the Ninth Circuit’s causation analysis in Head was based, inter alia, on Costa, but since Head, and in the context of the ADEA, the Supreme Court has held "textual differences between Title VII and the ADEA . . . prevent . . . [application of] [Costa v.] Desert Palace to federal age discrimination claims." Gross v. FBL Financial Services, Inc., 557 U.S. 167, 175 fn. 2 (2009). Specifically, 1991 amendments to Title VII, but not to the ADEA, provide that discrimination is "established" when a plaintiff shows the protected status was "a motivating factor" for the adverse employment actions. Without this additional language in the ADEA, the Court held in Gross that "a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the ‘but-for’ cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision." Id. at 2352. As with the ADEA, the 1991 "motivating factor" amendments to Title VII were not made to the ADA. Accordingly, Head and its rule of causation in an ADA case should be read carefully in light of Gross.

Under the ADA, a "disability" is defined as: (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. 42 U.S.C. §12102(2).

The ADA does not define key language such as "physical or mental impairment," "major life activity," and "substantially limits." The Supreme Court has noted this omission and, while questioning the authority of the EEOC to issue regulations defining these terms, has adopted certain EEOC definitions when the parties have accepted them as reasonable. SeeToyota Motor Mfg., Ky, Inc. v. Williams, 534 U.S. 184, 194–96 (2002). See alsoFraser v. Goodale, 342 F.3d 1032, 1038–41 (9th Cir.2003) (questioning the persuasive authority of EEOC regulations, but relying on the pre-ADA federal regulations under the Rehabilitation Act of 1973 in concluding diabetes is a "physical impairment" and "eating" is a major life activity); EEOC V. United Parcel Service, 306 F.3d 794, 801 (9th Cir.2002) (citing both the Rehabilitation Act and EEOC regulations in recognizing "seeing" as a major life activity).

The Supreme Court, however, has defined "substantially limited" to mean that an individual, in performing manual tasks, ". . . must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives. The impairment must also be permanent or long-term." Toyota Motor Mfg., 534 U.S. at 198.

Some cases do provide guidance on the question of when EEOC regulations may be properly incorporated into the ADA. In Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73 (2002), the Supreme Court sanctioned expansion of the business necessity defense based on EEOC regulations. The issue in Chevron involved the propriety of a worker with a liver condition being laid off by his employer due to the unavoidable exposure to toxins at a refinery creating health risks for the worker. There exists under the ADA, 42 U.S.C. §§ 12112(b)(6), 12113(a), an affirmative defense for an employment action under a qualification standard "shown to be job-related and consistent with business necessity," which "may include a requirement that an individual should not pose a direct threat to the health or safety of other individuals in the workplace." The unanimous opinion in Chevron held it was reasonable for the EEOC, through the enactment of a regulation (29 C.F.R. § 1630.15(b)(2) 2001) to carry "the defense one step further, in allowing an employer to screen out a potential worker with a disability not only for risks that he would pose to others in the workplace but for risks on the job to his own health or safety as well . . . " Id. at 78–79, 86–87. Accord, Hutton v. Elf Atochem North America, Inc., 273 F.3d 884, 892–94 (9th Cir.2001) (applying the "direct threat" affirmative defense factors as set forth in the EEOC regulations to an analysis of qualification standards).

A plaintiff’s remedies under the ADA are the same remedies available under Title VII governing employment discrimination. 42 U.S.C. § 12117(a). See the Introductory Comment to Chapter 10 ("Civil Rights—Title VI—Employment Discrimination; Harassment; Retaliation") for a summary of available remedies under Title VII.

Because cases decided under the ADA draw heavily upon Title VII and cases decided thereunder on subjects such as causation and remedies, the committee recommends that Chapter 10 be consulted when there arises a need to instruct a jury on hostile work environment, definition of common terms, constructive discharge, or defenses such as bona fide occupational qualification, bona fide seniority system, or after-acquired evidence.

The plaintiff has brought a claim of employment discrimination based on a federal law known as the Americans with Disabilities Act, which will be referred to in these instructions as the ADA.

Under the ADA, an employer may not discriminate against an individual who has a disability when that individual is qualified to perform the essential functions of the job with or without a reasonable accommodation.

The plaintiff claims that [his] [her] disability was the [sole reason] [motivating factor] for the defendant’s decision to[[discharge] [not hire] [not promote] [demote] [state other adverse action]] the plaintiff. The defendant denies that the plaintiff’s disability was either the sole reason or a motivating factor for the defendant’s decision to [[discharge] [not hire] [not promote] [demote] [state other adverse action]] the plaintiff [and further claims the decision to [[discharge] [not hire] [not promote] [demote] [state other adverse action]] the plaintiff was based upon [a] lawful reason[s]].

Comment

The judge should consider providing the jury with the following special verdict form to determine the jury’s finding on the question of sole or mixed motives.

Special Verdict

1. Has the plaintiff proved, by a preponderance of the evidence, that the plaintiff’s [state plaintiff’s disability] was the sole reason for the defendant’s decision to [[discharge] [not hire] [not promote] [demote] [state other adverse action]] [him] [her]?

_______ Yes _______ No

If the answer to Question No. 1 is "yes," proceed to Question No. 5. If the answer to Question No. 1 is "no," proceed to Question No. 2.

2. Has the plaintiff proved, by a preponderance of the evidence, that the plaintiff’s [state plaintiff’s disability] was a motivating factor for the defendant’s decision to [[discharge] [not hire] [not promote] [demote] [state other adverse action]] [him] [her]?

_______ Yes _______ No

If the answer to Question No. 2 is "no," do not answer any further questions on [the plaintiff’s claim of disability discrimination]. If the answer to Question No. 2 is "yes," proceed to Question No. [if same decision affirmative defense applies:3] [if same decision affirmative defense does not apply: 5].

3. Has the defendant proved, by a preponderance of the evidence, that the defendant’s decision to [[discharge] [not hire] [not promote] [demote] [state other adverse action]] plaintiff was also motivated by a lawful reason?

4. Has the defendant proved, by a preponderance of the evidence, that the defendant would have made the same decision to [[discharge] [not hire] [not promote] [demote] [state other adverse action]] the plaintiff even if the plaintiff’s [state plaintiff’s disability] had played no role in the defendant’s decision to [[discharge] [not hire] [not promote] [demote] [state other adverse action]] the plaintiff?

_______ Yes _______ No

If your answer to Question No. 4 is "yes," do not answer any further questions on damages related to the plaintiff’s claim of disability discrimination.

5. [The judge should draft further special verdict questions to cover damages, including punitive damages if appropriate.]

As to the plaintiff’s claim that [his] [her] disability was the sole reason for the defendant’s decision to [[discharge] [not hire] [not promote] [demote] [state other adverse action]] [him] [her], the plaintiff has the burden of proving the following evidence by a preponderance of the evidence:

1. the plaintiff has a disability within the meaning of the ADA;

2. the plaintiff was a qualified individual as that term is defined later in these instructions; and

3. the plaintiff was [[discharged] [not hired] [not promoted] [demoted] [state other adverse action]] solely because of the plaintiff’s disability.

If you find that plaintiff has proved all of these elements, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove any of these elements, your verdict should be for the defendant.

Comment

The ADA places on the plaintiff the burden of showing that the plaintiff is qualified. The plaintiff must show the ability to perform the essential functions of the job with or without a reasonable accommodation. 42 U.S.C. § 12112(b)(5)(A), 12111(8). See alsoCooper v. Neiman Marcus Group, 125 F.3d 786, 790 (9th Cir.1997) (stating elements); Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir.1996).

Because the powers, remedies and enforcement provisions of Title VII (42 U.S.C. §§ 2000e-4–6, 8–9) are incorporated into the ADA (42 U.S.C. § 12117(a)), a plaintiff’s remedies would be limited to declaratory or injunctive relief, as well as attorney’s fees and costs in a case where the employer would have made the same decision in the absence of a discriminatory motive.

An employee who commits an act of misconduct may be fired, regardless of whether he or she is disabled with the meaning of the ADA. Newland v. Dalton, 81 F.3d 904, 906 (9th Cir.1996) (holding that, while alcoholism is a "disability" under the ADA, employee’s arrest for criminal assault while intoxicated was a nondiscriminatory reason for termination).

The Supreme Court, in Raytheon Co. v. Hernandez, 540 U.S. 44 (2003), has recognized that while disparate treatment may be the most easily understood type of discrimination, a disparate impact claim of discrimination is directed at an employment practice that is facially neutral and does not fall more harshly on one group than another, but cannot be justified by business necessity (holding it was for the jury to determine whether a company’s decision not to relieve plaintiff was based on a neutral policy not to relieve anyone who had violated personal conduct rules, or motivated by plaintiff’s former drug addiction).

As to the plaintiff’s claim that [his] [her] [state plaintiff’s disability] was a motivating factor for the defendant’s decision to [[discharge] [not hire] [not promote] [demote] [state other adverse action]] [him] [her], the plaintiff has the burden of proving the following elements by a preponderance of the evidence:

1. the plaintiff has a disability within the meaning of the ADA;

2. the plaintiff was a qualified individual as that term is defined later in these instructions; and

If you find that the plaintiff has proved all of these elements, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove any of these elements, your verdict should be for the defendant.

Comment

As noted in the Introductory Comment, the Ninth Circuit has ruled that an ADA claimant must only prove that discrimination based on the claimant’s disability was a "motivating factor" in the employer’s decision to take adverse action and that the "because of" language contained in the ADA does not affect this causal standard. Head v. Glacier Northwest, Inc., 413 F.3d 1053, 1063–66 (9th Cir.2005).

See Comment to Instruction 12.1B (ADA Employment Actions—"Sole Reason"—Elements and Burden of Proof). See also the discussion of Smith v. City of Jackson, 544 U.S. 228 (2005) in the Introductory Comment to Chapter 11 ("Age Discrimination") on the question of the viability of the same decision defense in employment cases other than Title VII litigation. The committee suggests this instruction be given where the evidence warrants, especially in light of the common principles that buttress redress for employment discrimination under both Title VII and the ADA.

The Ninth Circuit has not explicitly decided whether the "same decision" affirmative defense is an absolute bar to a plaintiff’s recovery in the ADA context. If the trial court determines the evidence supports such a defense and, if established, the defense is a barto the plaintiff’s recovery, add the following, and omit the last paragraph in the above instruction:

If you find that the plaintiff has failed to prove any of these elements, your verdict should be for the defendant. If, on the other hand, the plaintiff has proved all of these elements, the plaintiff is entitled to your verdict, even if you find that the defendant’s decision was motivated by the plaintiff’s disability and a lawful reason. If, however, the defendant proves by a preponderance of the evidence that the defendant would have made the same decision even if the plaintiff’s disability had played no role in the defendant’s decision to [[discharge] [not hire] [not promote] [demote] [state other adverse action]] the plaintiff, your verdict should be for the defendant.

12.2 ADA—Physical or Mental Impairment

12.2 ADA—PHYSICAL OR MENTAL IMPAIRMENT

As you have been instructed, the first element of the ADA claim that the plaintiff must prove is that the plaintiff has a recognized disability under the ADA. A "disability" under the ADA is [[a physical or mental impairment] [a record of physical or mental impairment] [being regarded as having a physical or mental impairment]] that substantially limits one or more of the major life activities of such individual.

Major life activities are the normal activities of living which a non-disabledperson can do with little or no difficulty, such as caring for oneself, performing manual tasks, walking, sleeping, seeing, hearing, speaking, breathing, learning, engaging in sexual relations, reproducing, interacting with others, and working.

A limitation is substantial if the disabled person is unable to perform the activity or is significantly restricted in doing so.Factors to consider in deciding whether a major life activity is substantially limited include:

(1) the nature and severity of the impairment;

(2) the duration or expected duration of the impairment; and

(3) the permanent or long-term impact of the impairment.

Comment

The Supreme Court, in Toyota Motor Manufacturing, Ky., Inc. v. Williams, 534 U.S. 184 (2002) has addressed and defined important terms in the ADA lexicon. The Court held that the word "substantially" in the phrase "substantially limits" ". . . clearly precludes impairments that interfere in only a minor way with the performance of manual tasks from qualifying as disabilities." Id. at 196–97. The word "major" as in the phrase "major life activities" means "important" and "major life activities" are those ". . . that are of central importance to daily life . . .." Id. at 197. The Supreme Court then articulated its holding:

We therefore hold that to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives. The impairment’s impact must also be permanent or long-term. See 29 C.F.R. §§ 1630.2(j)(2)(ii)–(iii) (2001).

It is insufficient for individuals attempting to prove disability status under this test to merely submit evidence of a medical diagnosis of an impairment. Instead, the ADA requires those "claiming the Act’s protection . . . to prove a disability by offering evidence that the extent of the limitation [caused by their impairment] in terms of their own experience . . . is substantial." Albertson’s, Inc. v. Kirkingburg, supra [527 U.S. 555 ( 1999)], at 567 (holding that monocular vision is not invariably a disability, but must be analyzed on an individual basis, taking into account the individual’s ability to compensate for the impairment). That the Act defines "disability" "with respect to an individual," 42 U.S.C. § 12102(2), makes clear that Congress intended the existence of a disability to be determined in such a case-by-case manner. See Sutton v. United Air Lines, Inc., supra, [527 U.S. 471 (1999)] at 483; Albertson’s, Inc. v. Kirkingburg, supra, at 566 ; cf. Bragdon v. Abbott, 524 U.S. at 641–642 (relying on unchallenged testimony that the respondent’s HIV infection controlled her decision not to have a child, and declining to consider whether HIV infection is a per se disability under the ADA); 29 C.F.R. pt. 1630, App. § 1630.2(j) (2001) ("The determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual"); ibid. ("The determination of whether an individual is substantially limited in a major life activity must be made on a case-by-case basis").

Id. at 197–98.

Although the Supreme Court has questioned the EEOC’s authority to promulgate regulations further defining "disability" under §§ 12101–12102 (See Sutton v. United Air Lines, Inc., 527 U.S. 471, 479 (1999), the EEOC defines a "major life activity" to be caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. § 1630.2(i)(1999). The Ninth Circuit recognizes as major life activities sleeping, engaging in sexual relations, and interacting with others, (McAlindin v. County of San Diego, 192 F.3d 1226, 1234 (9th Cir.1999)), as well as eating (Fraser v. Goodale, 342 F.3d 1032, 1038–41 (9th Cir.2003)).

In Fraser, the court began its analysis by scrutinizing ". . . the nature, severity, duration, and impact of the impairment (29 C.F.R. § 1630(j)(2)(i)-(iii)) in holding, as a matter of first impression, that eating is a major life activity. At the same time, however, the court noted that although a "certain broad activity is of central importance to most people’s daily lives . . ." it is still important to analyze whether in a particular case the impairment is sufficiently limiting to be substantial. Id. at 1039–40. In Head v. Glacier Northwest, Inc., 413 F.3d 1053, 1061 (9th Cir.2005), the Ninth Circuit, in distinguishing Fraser, recognized that "thinking" is a major life activity.

In light of Toyota Motor Mfg., Ky., Inc., Albertson’s, Inc. and Sutton, the Ninth Circuit has held "that for a monocular individual to show that his impairment is a substantial limitation on the major life activity of seeing, the impairment must prevent or severely restrict use of his eyesight compared with how unimpaired individuals normally use their eyesight in daily life." Equal Employment Opportunity Commission v. United Parcel Service, Inc., 326 F.3d 794, 796–97 (9th Cir.2002).

The regulations consider work a major life activity, though this activity must be carefully analyzed to determine whether the plaintiff’s ability to work is substantially limited (see Instruction 12.4 (ADA—Work as a Major Life Activity)).

In an appropriate case, the trial court must instruct the jury that conduct resulting from a disability is part of the disability and is not a separate basis for termination. See Gambini v. Total Renal Care, Inc., 486 F.3d 1087, 1093 (9th Cir.2007) (in a case brought under the FMLA and the Washington Law Against Discrimination by a plaintiff who was terminated after she engaged in a profanity-laced outburst allegedly caused by her bipolar disorder, the Ninth Circuit held that it was error to refuse an instruction stating that conduct resulting from a disability is part of the disability and is not a separate basis for termination, citing the ADA case of Humphrey v. Memorial Hospitals Ass’n, 239 F.3d 1128, 1139-40 (9th Cir.2001). See, as to the defenses of business necessity and direct threat, respectively,Instruction 12.11 (ADA—Defenses—Business Necessity) and Instruction 12.12 (ADA—Defenses—Direct Threat).

12.3 ADA—Corrected or Mitigated Disability

The disability must be evaluated in its corrected or mitigated state. Even when corrected or mitigated, the disability must substantially limit a major life activity to qualify as a disability.

[Methods used to correct or mitigate disabilities are not limited to artificial aids, like medications and devices. A particular method or measure to treat or address a disability may not be sufficient, however, when the [[method] [measure] [treatment]] is so rigorous, difficult, or demanding that the major life activity is still substantially limited.]

Comment

This instruction arises from the trilogy of cases decided by the U.S. Supreme Court: Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) (severe myopia corrected by corrective lenses was not a disability because plaintiff did not show substantial limitation on major life activity); Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999) (hypertension successfully treated with medication not a disability because no substantial limitation on major life activity); and Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555 (1999) (monocular vision subconsciously compensated for was not a disability because plaintiff showed no substantial limitation on major life activity).

In Fraser v. Goodale, 341 F.3d 1032, 1038–43 (9th Cir.2003), the court engaged in a lengthy analysis of whether the "mitigating measures" test articulated in Sutton would apply to an ADA claimant with diabetes affecting the major life activity of eating. The court, recognizing that "[n]ot all mitigating measures cure a person of an underlying impairment," concluded that the plaintiff should have been allowed to present to the jury the question of whether the availability of insulin and certain foods eliminated the substantial limitation upon eating imposed by her diabetes. The court indicated that the nature and extent of the diabetes regimen would bear heavily on that question. The last paragraph of the instruction is based on the language of Fraser.

12.4 ADA—Work as a Major Life Activity

12.4 ADA—WORK AS A MAJOR LIFE ACTIVITY

When the major life activity under consideration is that of working, the plaintiff must prove, by a preponderance of the evidence, that the plaintiff was precluded from employment in a broad range of jobs. The inability to perform a single, particular job does not itself constitute a substantial limitation in the major life activity of working.

Other factors that you should consider when determining whether the plaintiff is substantially limited in the major life activity of working include:

(1) the geographical area to which the plaintiff has reasonable access, and

(2) the number and types of jobs utilizing similar training, knowledge, skills or abilities, within the geographical area, from which the plaintiff is also disqualified.

Comment

This instruction is based on 29 C.F.R. § 1630.2(j)(3)(ii)(A), (B) (1999). SeeJosephs v. Pacific Bell, 443 F.3d 1050, 1063 (9th Cir.2006) ("Under the ADA, when the ‘major life activity’ that is ‘substantially limit[ed]’ is working, the employee must be regarded as unable to work in a ‘class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.’" See also Holihan v. Lucky Stores, Inc., 87 F.3d 362, 366 (9th Cir.1996) (where plaintiff did not distinguish between a store manager class of employment and his activities in real estate and sign-making, he was not substantially limited as to the major life activity of working).

There is a controversy regarding the recognition of work as a major life activity, as explained by the Supreme Court:

Because the parties accept that the term "major life activities" includes working, we do not determine the validity of the cited regulations. We note, however, that there may be some conceptual difficulty in defining "major life activities" to include work, for it seems "to argue in a circle to say that if one is excluded, for instance, by reason of [an impairment, from working with others] . . . then that exclusion constitutes an impairment, when the question you’re asking is, whether the exclusion itself is by reason of handicap." Tr. of Oral Arg. in School Bd. of Nassau Co. v. Arline, O.T.1986, No. 85–1277, p. 15 (argument of Solicitor General). Indeed, even the EEOC has expressed reluctance to define "major life activities" to include working and has suggested that working be viewed as a residual life activity, considered, as a last resort, only "[i]f an individual is not substantially limited with respect to any other major life activity." 29 C.F.R. pt. 1630, App. § 1630.2(j) (1998) (emphasis added) ("If an individual is substantially limited in any other major life activity, no determination should be made as to whether the individual is substantially limited in working" (emphasis added)).

12.5 ADA—Manual Task as Major Life Activity

12.5 ADA—MANUAL TASK AS MAJOR LIFE ACTIVITY

When the major life activity under consideration is the ability to perform manual tasks, the impairment of that ability must, either permanently or over a lengthy period, prevent or substantially restrict the plaintiff from doing activities that are of central importance to most people’s daily lives either as independent tasks or when viewed together.

Comment

The Supreme Court has established that a claim arising from limitations on performing manual tasks requires that the plaintiff be unable to perform activities that are central to most people’s lives. See Toyota Motor Manufacturing, Kentucky, Inc v. Williams, 534 U.S. 184 (2002); see alsoThornton v. McClatchy Newspapers, 292 F.3d 1045 (9th Cir.2002) (continuous keyboarding not activity central to most people’s daily lives).

12.6 ADA—Qualified Individual

12.6 ADA—QUALIFIED INDIVIDUAL

The second element of the ADA claim that the plaintiff must prove is that the plaintiff is a qualified individual under the ADA.

The term qualified individual means an individual with a disability who, with or without a reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. The individual must satisfy the requisite skill, experience, education, and other job-related requirements of the employment position.

A disabled employee or applicant engaged in the use of illegal drugs at the time of the discriminatory incident will not be considered a "qualified individual with a disability." 42 U.S.C. § 12114(a).

"Holds or desires" has been interpreted by the Ninth Circuit to apply in situations where employees request reassignment "even if they cannot perform the essential functions of the current position." Barnett v. U. S. Air, Inc., 228 F.3d 1105, 1111 (9th Cir.2000), vacated on other grounds, 535 U.S. 391 (2002).

One who is disabled and seeking reasonable accommodation may be a "qualified individual" even when that person has asserted a permanent disability in connection with an application for disability retirement or benefits under a private disability insurance policy. Smith v. Clark Cnty. Sch. Dist., 727 F.3d 950, 956-58 (9th Cir.2013).

12.7 ADA—Ability to Perform Essential Functions—Factors

12.7 ADA—ABILITY TO PERFORM ESSENTIAL FUNCTIONS—FACTORS

An essential function of an employment position means the fundamental job duties of the employment position the plaintiff holds or desires. It does not include the marginal functions that may occur through the course of a job.

You must consider the employer's judgment as to what functions of a job are essential. If any employer has prepared a written description before advertising or interviewing applicants for the job, this description is evidence of the essential functions of the job.

Other factors that may bear upon whether a job function is essential include, but are not limited to:

(1) [whether the reason the position exists is to perform that function][;]

(2) [whether there are a limited number of employees available among whom the performance of that job function can be distributed][;]

(3) [whether the job function is highly specialized, and the person in that particular position is hired for [his] [her] expertise or ability to perform the particular function][;]

(4) [the amount of time spent performing the job function][;]

(5) [the consequences of not requiring the individual holding the position to perform the function][;]

(6) [the terms of any collective bargaining agreement][;]

(7) [the work experience of past employees who have held the position][;] [and]

(8) [the work experience of current employees that hold similar positions].

Comment

The second paragraph is based upon 42 U.S.C. § 12111(8). The term "marginal functions" in the first paragraph and the factors in the third paragraph are set forth in 29 C.F.R. § 1630.2(n) (1999). See alsoDark v. Curry County, 451 F.3d 1078, 1084–85 (9th Cir.2006) (discussing essential functions and marginal functions), cert. denied, 127 S. Ct. 1252 (2007).

"Holds or desires" has been interpreted by the Ninth Circuit to refer to situations where employees request reassignment "even if they cannot perform the essential functions of the current position." Barnett v. U. S. Air, Inc., 228 F.3d 1105, 1111 (9th Cir.2000), vacated on other grounds, 535 U.S. 391 (2002). A disabled individual who can no longer perform the essential functions of her position may be entitled to relief if reassignment is found to be a "reasonable accommodation."

In Kaplan v. City of North Las Vegas, 323 F.3d 1226, 1232–33 (9th Cir.2003), the court held an employer had no duty to accommodate a deputy marshal, where it was undisputed he could not perform the essential function of restraining prisoners through hand-to-hand combat, even though the cause of hand pain had been misdiagnosed.

In Cripe v. City of San Jose, 261 F.3d 877, 887 (9th Cir. 2001), the court observed that "an employer may not turn every condition of employment which it elects to adopt into a job function, let alone an essential job function, merely by including it in a job description." (quoting Echazabal v. Chevron USA, Inc., 226 F.3d 1063, 1071 (9th Cir. 2000)). In Cripe, the Ninth Circuit held that the issue of whether the ability of all specialized police officers to make a forcible arrest constituted an essential function of the job presented a factual question under the circumstances of that particular case. Id. at 888-89.

In Bates v. UPS, Inc., 511 F.3d 974, 990 (9th Cir. 2007) (en banc), the court emphasized that "essential functions" are not to be confused with "qualification standards" established by an employer for a certain position. "Whereas ‘essential functions’ are ‘basic duties,’ 29 C.F.R. § 1630.2(n)(1), ‘qualification standards’ are ‘personal and professional attributes’ that may include ‘physical, medical [and] safety’ requirements. Id. § 1630.2(q)."

12.8 ADA—Reasonable Accommodation

To establish the defendant's duty to provide a reasonable accommodation, the plaintiff must prove, by a preponderance of the evidence, both of the following elements:

[1. the plaintiff requested of the defendant an accommodation due to a disability.]

or

[1. the defendant knew, or had reason to know that:

(a) the plaintiff has a disability;

(b) the plaintiff was experiencing workplace problems because of the disability; and

(c) the disability prevented the plaintiff from requesting a reasonable accommodation.]

and

2. the defendant could have made a reasonable accommodation that would have enabled the plaintiff to [apply or qualify for] [perform the essential functions of] the job.

Under the ADA, [an] accommodation[s] by the defendant may include, but [is] [are] not limited to:

(1) [modifying or adjusting a job application process to enable a qualified applicant with a disability to be considered for the position][;]

(2) [making existing facilities used by employees readily accessible to and usable by individuals with disabilities][;]

(3) [job restructuring][;]

(4) [part-time or modified work schedule][;]

(5) [reassignment to a vacant position][;]

(6) [acquisition or modifications of examinations, training materials or policies][;]

(7) [provision of qualified readers and interpreters][;] [or]

(8) [other similar accommodations for individuals with plaintiff's disabilities].

It is for you to determine whether the accommodation[s] requested by the plaintiff [is] [are] reasonable.

A reasonable accommodation does not include changing or eliminating any essential function of employment, shifting any of the essential functions of the subject employment to others, or creating a new position for the disabled employee.

[If the plaintiff rejects a reasonable accommodation that could enable the plaintiff to perform the essential functions of the position, the plaintiff cannot be considered qualified for the position.]

[An accommodation is generally not reasonable when it consists of a request to be reassigned to another job position that would be in violation of an employer’s seniority system. This general rule, however, does not apply if the plaintiff has proved, by a preponderance of the evidence, special circumstances such as [[the seniority system provides for exceptions] [the employer has exercised changes to the seniority system] [state other special circumstance]].]

Comment

The bracketed language as to special circumstances at the end of the instruction has been added as a result of language in U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 405–06 (2002).

The factors listed in this instruction are derived from 42 U.S.C. § 12111(9) and 29 C.F.R. §§ 1630.2(o)(1)(i), (3), 1630.9(d). See also Barnett v. U. S. Air, Inc., 228 F.3d 1105, 1112–14 (9th Cir.2000) (en banc) (holding that interactive process is a mandatory, not permissive, duty of the employer and that employer has duty to initiate interactive process in some circumstances), vacated on other grounds, 535 U.S. 391 (2002).

In U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002), the Supreme Court dealt with the question of how a requested accommodation (reassignment from the position of cargo handler to that of mailroom worker) should be reconciled when the request conflicts with a seniority system. The Supreme Court recognized that while ordinarily a proposed accommodation that would otherwise be reasonable becomes unreasonable when in conflict with a seniority system, an employee should have an opportunity to establish any special circumstances that may constitute an exception to the general rule.

In PGA Tour v. Martin, 532 U.S. 661 (2001), the Supreme Court ruled that petitioner’s use of a golf cart that is normally prohibited during professional tour events is a reasonable accommodation for a professional golfer, disabled by a degenerative circulatory disorder impairing the ability to walk a golf course in a golf tournament. The Supreme Court found that such an accommodation would not "fundamentally alter" a tournament. Id. at 690.

The Ninth Circuit, in Josephs v. Pacific Bell, 443 F.3d 1050, 1060 (9th Cir.2006) joined several other circuits in expressly recognizing discriminatory failure to reinstate as a separately actionable claim under the ADA.

One who is disabled and seeking reasonable accommodation may be a "qualified individual" even when that person has asserted a permanent disability in connection with an application for disability retirement or benefits under a private disability insurance policy. Smith v. Clark Cnty. Sch. Dist., 727 F.3d 950, 956-58 (9th Cir.2013).

12.9 ADA—Undue Hardship

12.9 ADA—UNDUE HARDSHIP

A defendant is not required to provide an accommodation that will impose an undue hardship on the operation of the defendant's business.

The term undue hardship means an action requiring significant difficulty or expense. It takes into account the financial realities of the particular defendant and refers to any accommodation that would be unduly costly, extensive, substantial, or disruptive, or that would fundamentally alter the nature or operation of the business.

The factors to be considered in deciding whether an accommodation would cause undue hardship include:

(1) [the nature and net cost of the accommodation, accounting for tax credits or deductions and other outside funding][;]

(2) [the overall financial resources of the defendant's facility involved in the provision of the reasonable accommodation, the number of persons employed at such facility, the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility][;]

(3) [the overall financial resources of the defendant's facility, the overall size of the business of a defendant's facility with respect to the number of its employees, the number, type, and location of its facilities][;]

(4) [the number of persons employed by defendant and the effect of accommodation][;]

(5) [the type of operations the defendant is involved in and the composition, structure, and functions of the work force][;]

(6) [the geographic separateness and administrative or fiscal relationship of the facility in question to the defendant][;] [and]

(7) [the overall impact of the proposed accommodation on the operation of the defendant’s facilities, including the impact on other employees and the ability to conduct business].

Comment

The factors in this instruction are derived from 42 U.S.C. § 12111(10) and 29 C.F.R. § 1630.2(p), App. 1630.2(p).

12.10 ADA—Discrimination—Retaliation

12.10 ADA—RETALIATION

It is unlawful for a person or entity to discriminate against any individual because that individual has opposed any act or practice that he or she reasonably believes to be unlawful under the ADA or because that individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the ADA.

Disability is not an element of a retaliation action under the ADA.

For the plaintiff to establish retaliation in violation of the ADA, the plaintiff must prove the following elements by a preponderance of evidence:

1. the plaintiff [engaged] [was engaging] in conduct protected under the ADA;

2. the plaintiff was subjected to an adverse employment action at the time, or after, the protected conduct occurred;

3. [there was a causal link between the protected activity and the adverse employment action]; and

If you find that each of the elements on which the plaintiff has the burden of proof has been proved, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove any of these elements, your verdict should be for the defendant.

Comment

The Ninth Circuit applies the Title VII framework for retaliation claims. Barnett v. U. S. Air, Inc., 228 F.3d 1105, 1121 (9th Cir.2000) (en banc) (adopting test and stating elements), vacated on other grounds, 535 U.S. 391 (2002). See Instruction 10.4A.2 (Civil Rights—Title VII—"Adverse Employment Action" in Disparate Treatment Cases). See alsoBurlington No. and Santa Fe Ry. v. White, 548 U.S. 53, 68 (under anti-retaliation provision of Title VII, plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it might have "dissuaded a reasonable worker from making or supporting a charge of discrimination.") Because the Ninth Circuit has defined causation utilizing the term "causal link," it is set forth as the first option for the element of causation. Because the Title VII framework for retaliation claims has been adopted, however, the committee has provided a second causation option based on "motivating factor" language. See the Introductory Comment to this chapter regarding use of a "motivating factor" test.

12.11 ADA—Defenses—Business Necessity

12.11 ADA—DEFENSES—BUSINESS NECESSITY

Business necessity is a defense to a claim of discrimination under the ADA.

If you find that the defendant's application of standards, criteria, or policies have [the effect of screening out or otherwise denying a job or benefit to individuals with plaintiff's disability] [a disparate impact on individuals with plaintiff's disability], the defendant must prove, by a preponderance of the evidence, that the standard, criterion, or policy:

1. is uniformly applied;

2. is job-related;

3. is consistent with business necessity; and

4. cannot be met by a person with plaintiff's disability even with a reasonable accommodation.

If you find that each of the elements on which the plaintiff has the burden of proof has been proved, your verdict should be for the plaintiff, unless you also find that the defendant has proved this affirmative defense, in which event your verdict should be for the defendant.

Comment

See 42 U.S.C. § 12113(a) (describing defenses and terms) and 29 C.F.R. § 1630.15(c) (1999) (describing the four elements a defendant must prove to overcome burden). For a discussion of the business necessity defense as it applies to an across-the-board employer qualification standard (hearing test for package car drivers), see Bates v. UPS, Inc., 511 F.3d 974, 994-98 (9th Cir. 2007) (en banc).

The Supreme Court has recognized that the "direct threat" affirmative defense (whether an employee poses a threat to others or to the employee himself or herself) is consistent with "business necessity" principles encompassed in the ADA (§ 12113) and the EEOC regulations (29 C.F.R. § 1630.15(b)(2) (2001). Chevron U.S.A., Inc. v. Eschazabal, 536 U.S. 73, 76–77.

12.12 ADA—Defenses—Direct Threat

12.12 ADA—DEFENSES—DIRECT THREAT

It is a defense to the plaintiff's ADA claim if the plaintiff posed a direct threat to the health and safety of others [or if the requirements of the job would pose a direct threat to the plaintiff]. The defendant may require, as a qualification for the position, that an individual not pose a "direct threat" to the health or safety of [[others] [himself] [herself]] in the workplace. A health or safety risk can only be considered if it is a significant risk of substantial harm. Assessment of the existence of a direct threat must be based on valid and objective evidence and not speculation.

The defendant claiming the direct threat defense must prove by a preponderance of the evidence that the plaintiff posed a direct threat to the health or safety of [[others] [himself] [herself]] that could not be eliminated by a reasonable accommodation.

Factors that may be considered in determining whether an individual poses a direct threat to the health and safety of [[others] [himself] [herself]] are:

(1) the nature and severity of the potential harm;

(2) the duration of the potential harm;

(3) the imminence of the potential harm; and

(4) the probability of the harm occurring.

If you find that each of the elements on which the plaintiff has the burden of proof has been proved, your verdict should be for the plaintiff, unless you also find that the defendant has proved this affirmative defense, in which event your verdict should be for the defendant.

Comment

See 42 U.S.C. §§ 12111(3) (defines direct threat), 12113(b) (provides that a qualification standard can include a condition that a person not pose a direct threat); School Bd. of Nassau County v. Arline, 480 U.S. 273 (1987) (claim under the Rehabilitation Act of 1973), provides the criteria for what is considered a direct threat.)

This defense does apply when the direct threat is to the disabled individual. See Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73, 76–77 (2002) (recognizing the availability of the "direct threat" defense where toxins at an oil refinery would exacerbate plaintiff’s liver condition).

12.13 ADA—Damages (Comment only)

12.13 ADA—DAMAGES

Comment

See Chapter 5 ("Damages") for damage instructions. See also 42 U.S.C. § 12117(a) (applies the powers, remedies, and enforcement provisions of Title VII to any persons alleging employment discrimination on the basis of a disability).

See 42 U.S.C. § 1981a(2) (provides for the recovery of compensatory and punitive damages against a defendant who violates § 102(b)(5) of the ADA (42 U.S.C. § 12112(b)(5)) by failing to make a reasonable accommodation).

See 42 U.S.C. § 1981a(b)(3) (limits the amount of damages recoverable, based on the defendant’s employee base).

See 42 U.S.C. § 1981a(c)(2) (requires that these limits not be disclosed to the jury. The limits do not apply to back pay or front pay, which is awarded under 42 U.S.C. § 2000e–5(g)(1), not 42 U.S.C. § 1981a). See also Pollard v. E.I. du Pont de Nemours & Company, 532 U.S. 843 (2001).

There is a significant question whether back pay and front pay are questions for the jury or the court.

See also the Introductory Comment to Chapter 10 ("Civil Rights—Title V—Employment Discrimination; Harassment; Retaliation") and the Introductory Comment to this chapter.